Family Law Hub

Court to presume that a child's welfare is furthered by involvement of both parents

Changes to Children Act 1989 to be introduced

  • Courts will soon have to presume that 'unless the contrary is shown, that the involvement of both parents after separation will further that child's welfare following the result of a consultation published today.

    The consultation, published in June 2012, asked for responses to four possible options to help the Government's achieve their stated aim of ensuring that 'children can benefit from the involvement of both parents in their lives following family separation'. The options were:

    1 - the Presumption approach which would insert a new subsection after section 1(2) of the Children Act 1989 and before the 'welfare checklist':

    "In the circumstances mentioned in subsection (4)(a) or (4A) the court is to presume, unless the contrary is shown, that the welfare of the child concerned will be furthered by involvement in the child's upbringing of each parent of the child who can be involved in a way not adverse to the child's safety"

    2 - the Principle approach which would insert a new subsection into section 1 of the Children Act 1989, after existing subsection (2) and before the 'welfare checklist', as follows:

    "In the circumstances mentioned in subsection (4)(a) or (4A), the court shall have regard to the general principle that, irrespective of the amount of contact a child may have with any parent, the child's welfare is likely to be furthered by the fullest possible involvement of each parent of the child in the child's life".


    3 - The 'Starting Point' approach which would insert a new subsection into section 1 of the Children Act 1989, after existing subsection (2) and before the 'welfare checklist', as follows:

    "In the circumstances mentioned in subsection (4)(a) or (4A), the court's starting point is to be that the welfare of the child concerned is likely to be furthered if each parent of the child is involved in the child's upbringing."

    4 – 'Welfare Checklist' approach which would insert a new subsection immediately after section 1(3) - the welfare checklist - setting out an additional factor which the court would need to consider, as follows:

    "In the circumstances mentioned in subsection (4)(a) a court shall also, and in the circumstances mentioned in subsection (4A) a court shall, have regard in particular to enabling the child concerned to have the best relationship possible with each parent of the child".

    214 responses were received (67 of them from fathers) and 52% preferred the presumption approach which the Government says shows 'a clear preference among those who responded for legislative change to reinforce this expectation, and for option 1 (the 'presumption' approach) in particular.' However, it has also said that it intends to amend the approach set out in the consultation to include stronger wording about safety in the light of concerns aired by some respondents. The new proposed clause, published alongside the response, reflects that change.

    Reasons given for supporting the new approach include

    • 'the policy will increase children's wellbeing and support improved outcomes by enabling them to maintain a relationship with both parents;
    • the proposals address perceived bias (normally perceived as being against fathers) in the family courts;
    • the proposals will increase public confidence in the legal system;
    • there will be lower levels of conflict between parents; parents will be encouraged to reach agreement without court proceedings and "resident parents" will be less likely to obstruct contact;
    • there is likely to be a consequent decrease (over time) in the number of court applications;
    • Court hearings are likely to be speedier, with parties' positions being less "polarised"
    • the proposed change highlights in law that both parents are responsible for their children'

    The consultation had also sought responses on more effective enforcement of court orders but the Government is taking an 'opportunity to reflect further' on this issue, in the light of responses received, so a separate document will be published 'shortly'.

    The full response paper can be downloaded from the DfE website

News, published: 06/11/2012

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Published: 06/11/2012

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